Information Note on the Court’s case-law 69

November 2004

Sejdovic v. Italy - 56581/00

Judgment 10.11.2004 [Section I]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Conviction in absentia without accused being informed of the proceedings or being able to have them reopened without showing that he was not a fugitive: violation

Article 41

Just satisfaction

Reopening of criminal proceedings

Article 46

Ar ticle 46-2

Execution of judgment

Identification by the Court of a structural problem linked to a malfunctioning of the legislation and internal practice

[This case was referred to the Grand Chamber on 30 March 2005]

Facts : The applicant could not be traced on the date on which the judge ordered that he be placed in pre-trial detention; the authorities were subsequently unable to inform him of the proceedings against him. He did not take part in the trial, and was represent ed by an officially-appointed lawyer. The applicant was sentenced to more than twenty-one years’ imprisonment for manslaughter and illegally carrying a weapon. In the absence of an appeal, the decision became final. The applicant was arrested in Germany mo re than two years later. The Italian courts requested his extradition. The Italian public prosecutor considered that the applicant had “absconded” immediately after the murder and had thus deliberately sought to evade justice (‘ latitente ’). For that reason, in application of the rules of the applicable Code of Criminal Procedure, his case could only be re-examined by the Italian courts in his presence if it were established that the judicial decision stating that he had deliberately sough t to evade justice (‘ latitente ’) was erroneous. The German authorities refused to extradite the applicant since, in those circumstances, there were insufficient guarantees that the applicant would obtain reopening of his trial. Under the relevant domestic legislation, accused persons who had been convicted in absentia could only apply for re-opening of the period for lodging an appeal against judgments served upon their defence counsels if they had not deliberately refused to acquaint themselves with the pr ocedural acts.

Law : Article 6 – The Court noted that the Italian authorities had, in substance, considered that the applicant had waived his right to appear at the trial in that he had become untraceable immediately after the killing, which had been commit ted in the presence of several eyewitnesses. In the respondent Government’s opinion, it could be inferred from the applicant’s conduct that he wished to abscond. The Court noted that there was nothing to prove that the applicant had been officially informe d of the prosecution against him or of the date of his trial. Only his absence from his usual place of residence when the authorities tried to arrest him could have given the impression that he was aware or feared that the police were searching for him. Fu rthermore, even supposing that the applicant was indirectly aware of the opening of criminal proceedings against him, it could not however be concluded that he had unequivocally waived his right to appear at the hearing, given that the Convention required official notification of proceedings. Accordingly, the domestic law ought to offer him a sufficiently certain possibility of obtaining a new trial at which he would be present. Convicted persons who could not be considered to have unequivocally waived the right to appear should in all circumstances be able to obtain a new ruling by a court on the charges brought against them. The mere possibility that there might have been a waiver, depending on the evidence that might be supplied by the prosecuting authori ties or by the convicted person regarding the circumstances surrounding the declaration of the latter’s fugitive status, could not satisfy the requirements of Article 6 of the Convention. As the domestic legislation did not guarantee with sufficient certai nty that the applicant would have the opportunity of appearing at a new trial to present his defence, the means provided by the national authorities had not made it possible to achieve the results required by Article 6 of the Convention.

Conclusion : violat ion (unanimously).

Article 46 – The Court held that the violation observed resulted from a systemic problem related to a shortcoming in domestic legislation and practice, arising from the absence of an effective mechanism for guaranteeing the right of pers ons convicted by default, who had not been effectively informed of the proceedings against them and had not unequivocally waived their right to appear, to obtain a new ruling on the merits of the charges brought against them, from a court which had heard t hem in accordance with the requirements of Article 6. The Court noted that the respondent Government should take appropriate measures to make provision for and regulate proceedings capable of effectively securing the right to the reopening of proceedings f or the applicant and for persons who were in a similar situation.

Article 41 – The Court ruled that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant, and reiterated that where it had held that an applicant had been convicted despite the existence of a potential infringement of his right to take part in his trial, the most appropriate form of redress, in principle, was to retry him or to reopen the proceedings in due course and in accordance with the requirements of Article 6 of the Convention ( Somogyi judgment of 18 May 2004, Case-Law Report No. 64). The Court made an award in respect of costs and expenses, including those incurred in the extradition proceedings before the German courts, since the impossibility of reopening the trial had been raised during those proceedings.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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